Llewellyn wrote:Furthermore, why would you want to even cite to a dissent in a 7-2 decision for authority?

Not only that, but a 7-2 decision where the other dissenting justice wrote their own opinion to clearly exclude agreement of the Commerce Clause argument and agree with the other parts of O'Connor's argument. O'Connor is the sole justice to even say the Commerce Clause was relevant to the case. Even Brennan's dissent makes that part of her argument irrelevant.

Llewellyn wrote:Furthermore, why would you want to even cite to a dissent in a 7-2 decision for authority?

Because it was right. Also, it shows that the Commerce Clause is not completely irrelevant from Dole or the Taxing and Spending Clause. Now its me, a 0L and Justice O'Connor who know nothing about Con law vs. just me.

But as to taxing and spending power and interstate commerce, tax and spend can be used as a blunt instrument to force states to accept a congressional mandate based on Congresses Commerce power (because remember congress has no police power, then can say this violates the commerce clause, which is our personal domain, but they have not police power to force states to do what they said. Well except the blunt instrument that is the tax and SPENDING power. Example Louisiana drinking age kept at 18, fed said that's a commerce issue raise it to 21, state said its a health/sfty issue, fed says our commerce trumps your state health/safety issue, go to 21. Louisiana said no, and congress said well we will send in our police force then. Whoops, wait we don't have one. but hey we got the spending power, and we gots your federal highway money, and if you don't raise legal drinking age to 21, we won't spend it in your state. And the highways fell to crap and LA said OK, its 21 now, please fix our roads. Spending power is about the only blunt instrument congress has to enforce its mandates under commerce clause if a state refuses.

But as to taxing and spending power and interstate commerce, tax and spend can be used as a blunt instrument to force states to accept a congressional mandate based on Congresses Commerce power (because remember congress has no police power, then can say this violates the commerce clause, which is our personal domain, but they have not police power to force states to do what they said. Well except the blunt instrument that is the tax and SPENDING power. Example Louisiana drinking age kept at 18, fed said that's a commerce issue raise it to 21, state said its a health/sfty issue, fed says our commerce trumps your state health/safety issue, go to 21. Louisiana said no, and congress said well we will send in our police force then. Whoops, wait we don't have one. but hey we got the spending power, and we gots your federal highway money, and if you don't raise legal drinking age to 21, we won't spend it in your state. And the highways fell to crap and LA said OK, its 21 now, please fix our roads. Spending power is about the only blunt instrument congress has to enforce its mandates under commerce clause if a state refuses.

If you read the oral argument, there was an extended discussion about the Commerce Clause and the role of the Twenty-First Amendment in limiting the scope of the Clause with respect to regulating the import/distribution/regulation blah blah blah of alcohol. The holding had two parts. [Abridged version:] Part (a) held that Congress can attach conditions on the receipt of federal funds. Part (b) held that the Twenty-First Amendment, seeking to limit the scope of the Commerce Clause, did not act as an independent constitutional bar on other constitutional provisions, to wit, the Spending Clause.

Lessons learned:

1. 0Ls shouldn't give 1Ls exam advice.2. 1Ls shouldn't pretend they know everything about a case's significance just because they read a three-page version of the case.

Last edited by Learning Hand on Wed May 05, 2010 10:11 pm, edited 1 time in total.

But as to taxing and spending power and interstate commerce, tax and spend can be used as a blunt instrument to force states to accept a congressional mandate based on Congresses Commerce power (because remember congress has no police power, then can say this violates the commerce clause, which is our personal domain, but they have not police power to force states to do what they said. Well except the blunt instrument that is the tax and SPENDING power. Example Louisiana drinking age kept at 18, fed said that's a commerce issue raise it to 21, state said its a health/sfty issue, fed says our commerce trumps your state health/safety issue, go to 21. Louisiana said no, and congress said well we will send in our police force then. Whoops, wait we don't have one. but hey we got the spending power, and we gots your federal highway money, and if you don't raise legal drinking age to 21, we won't spend it in your state. And the highways fell to crap and LA said OK, its 21 now, please fix our roads. Spending power is about the only blunt instrument congress has to enforce its mandates under commerce clause if a state refuses.

The spending power is a separate enumerated power; it can be exercised in and of itself.

As such, Congress can use the spending power to get states to waive challenges to laws that may not otherwise pass under a separate enumerated power.

Yes Congress could have passed a law regulating the drinking age based on their commerce power, but they didn't have to. Dole stands for the proposition that Congress can use the spending power to pass a law/enforce a law/even encourage states to waive sovereign immunity so long as their use of the spending power:

1)Is in pursuit of the general welfare2)Imposes unambiguous conditions so that the states may make knowing choices3)Imposes conditions which are reasonably related to a federal interest4)Imposes conditions which are not barred by any other independent constitutional provision.

At times there may be some interplay between the two powers, but the fact is they exist independent of one another. They do not need to rely on each other. Congress could conceivably use their spending power to effectuate a law or regulation that has absolutely no effect on interstate commerce, and does not implicate the commerce power at all.

Learning Hand wrote:If you read the oral argument, there was an extended discussion about the Commerce Clause and the role of the Twenty-First Amendment in limiting the scope of the Clause with respect to regulating the import/distribution/regulation blah blah blah of alcohol. The holding had two parts. Part (a) held that Congress can attach conditions on the receipt of federal funds. [Abridged version:] Part (b) held that the Twenty-First Amendment, seeking to limit the scope of the Commerce Clause, did not act as an independent constitutional bar on other constitutional provisions, to wit, the Spending Clause.

Lessons learned:

1. 0Ls shouldn't give 1Ls exam advice.2. 1Ls shouldn't pretend they know everything about a case's significance just because they read a three-page version of the case.

bernie shmegma wrote:Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations. But, I'm just a 0L so wtf do I know?

They are two diff. enumerated powers. Congress can tax or spend for the general welfare, they don't have to tax/spend to effectuate another enumerated power. Dole had absolutely nothing to do with the Commerce Clause.

Quoting myself from page 1. Bernie, don't be the guy who argues with the professor in LS. Both the professors and students in your school will hate you. However, there may be no saving you.

But as to taxing and spending power and interstate commerce, tax and spend can be used as a blunt instrument to force states to accept a congressional mandate based on Congresses Commerce power (because remember congress has no police power, then can say this violates the commerce clause, which is our personal domain, but they have not police power to force states to do what they said. Well except the blunt instrument that is the tax and SPENDING power. Example Louisiana drinking age kept at 18, fed said that's a commerce issue raise it to 21, state said its a health/sfty issue, fed says our commerce trumps your state health/safety issue, go to 21. Louisiana said no, and congress said well we will send in our police force then. Whoops, wait we don't have one. but hey we got the spending power, and we gots your federal highway money, and if you don't raise legal drinking age to 21, we won't spend it in your state. And the highways fell to crap and LA said OK, its 21 now, please fix our roads. Spending power is about the only blunt instrument congress has to enforce its mandates under commerce clause if a state refuses.

The spending power is a separate enumerated power; it can be exercised in and of itself.

As such, Congress can use the spending power to get states to waive challenges to laws that may not otherwise pass under a separate enumerated power.

Yes Congress could have passed a law regulating the drinking age based on their commerce power, but they didn't have to. Dole stands for the proposition that Congress can use the spending power to pass a law/enforce a law/even encourage states to waive sovereign immunity so long as their use of the spending power:

1)Is in pursuit of the general welfare2)Imposes unambiguous conditions so that the states may make knowing choices3)Imposes conditions which are reasonably related to a federal interest4)Imposes conditions which are not barred by any other independent constitutional provision.

At times there may be some interplay between the two powers, but the fact is they exist independent of one another. They do not need to rely on each other. Congress could conceivably use their spending power to effectuate a law or regulation that has absolutely no effect on interstate commerce, and does not implicate the commerce power at all.

That's all; that's it; leave it alone.

You also missed that it can't be coercive. I wasn't saying that Congress should use their commerce power at all. I was saying that these provisions circumvent the enumerated Commerce powers via taxing and spending. I also think Dole fails three of the 5 conditions it set. But, yes, you are right that this was the outcome of the case, unfortunately.

bernie shmegma wrote:Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations. But, I'm just a 0L so wtf do I know?

They are two diff. enumerated powers. Congress can tax or spend for the general welfare, they don't have to tax/spend to effectuate another enumerated power. Dole had absolutely nothing to do with the Commerce Clause.

Quoting myself from page 1. Bernie, don't be the guy who argues with the professor in LS. Both the professors and students in your school will hate you. However, there may be no saving you.

Moreover, OP asked a fairly limited-scope question. One skill you would be advised to develop, 0L, is the art of never offering more info than you were asked; and, second, know when your or someone else's answers are non-responsive.

and lol@at you thinking you are constitutionally literate just because you can (rightfully) bitch that American federalism has died.

bernie shmegma wrote:Because it was right. Also, it shows that the Commerce Clause is not completely irrelevant from Dole or the Taxing and Spending Clause. Now its me, a 0L and Justice O'Connor who know nothing about Con law vs. just me.

I am making this argument for every Thomas dissent ever on my test. (tbf i love o'connor)

chicago520 wrote:WOW there are a lot of misstatements of law above. jesus christ. this is very very easy and not hard or "nebulous." Congress cannot regulate non-economic activites after the lopez, morrison, and raich. how many times do you want the SCOTUS to shout this is your god damn ears.

if you are to reply to this, please cite EXACT QUOTES FROM A CASE saying something that contradicts the above.

NOTE: DO NOT CITE Scalia's concurrence in Raich; that is NOT BINDING LAW. So, don't. lol.

chicago520 wrote:WOW there are a lot of misstatements of law above. jesus christ. this is very very easy and not hard or "nebulous." Congress cannot regulate non-economic activites after the lopez, morrison, and raich. how many times do you want the SCOTUS to shout this is your god damn ears.

if you are to reply to this, please cite EXACT QUOTES FROM A CASE saying something that contradicts the above.

NOTE: DO NOT CITE Scalia's concurrence in Raich; that is NOT BINDING LAW. So, don't. lol.

What is growing and using marijuana for one's personal use?

An individual activity that when considered under the Wickard aggregation principle has effects on the interstate commerce being regulated (the sale and distribution of marijuana). Raich upheld Wickard in this sense. Congress was regulating the commerce of marijuana production and sale (by prohibiting it outright) and under Wickard they can regulate this as an individual instance of it.

But as to taxing and spending power and interstate commerce, tax and spend can be used as a blunt instrument to force states to accept a congressional mandate based on Congresses Commerce power (because remember congress has no police power, then can say this violates the commerce clause, which is our personal domain, but they have not police power to force states to do what they said. Well except the blunt instrument that is the tax and SPENDING power. Example Louisiana drinking age kept at 18, fed said that's a commerce issue raise it to 21, state said its a health/sfty issue, fed says our commerce trumps your state health/safety issue, go to 21. Louisiana said no, and congress said well we will send in our police force then. Whoops, wait we don't have one. but hey we got the spending power, and we gots your federal highway money, and if you don't raise legal drinking age to 21, we won't spend it in your state. And the highways fell to crap and LA said OK, its 21 now, please fix our roads. Spending power is about the only blunt instrument congress has to enforce its mandates under commerce clause if a state refuses.

The spending power is a separate enumerated power; it can be exercised in and of itself.

As such, Congress can use the spending power to get states to waive challenges to laws that may not otherwise pass under a separate enumerated power.

Yes Congress could have passed a law regulating the drinking age based on their commerce power, but they didn't have to. Dole stands for the proposition that Congress can use the spending power to pass a law/enforce a law/even encourage states to waive sovereign immunity so long as their use of the spending power:

1)Is in pursuit of the general welfare2)Imposes unambiguous conditions so that the states may make knowing choices3)Imposes conditions which are reasonably related to a federal interest4)Imposes conditions which are not barred by any other independent constitutional provision.

At times there may be some interplay between the two powers, but the fact is they exist independent of one another. They do not need to rely on each other. Congress could conceivably use their spending power to effectuate a law or regulation that has absolutely no effect on interstate commerce, and does not implicate the commerce power at all.

That's all; that's it; leave it alone.

You also missed that it can't be coercive. I wasn't saying that Congress should use their commerce power at all. I was saying that these provisions circumvent the enumerated Commerce powers via taxing and spending. I also think Dole fails three of the 5 conditions it set. But, yes, you are right that this was the outcome of the case, unfortunately.

First things first: The whole point here is this: OP wanted to know how the modern commerce clause works. If op read Dole he would not come away with a sufficient understanding of the modern commerce clause. In fact, his most pressing question concerned how the substantial effects test is applied to economic/non-economic activity; Dole does not provide an answer to that question.

It's ok to think that Dole fails its own test. It's probably a good thing that you challenge the reasoning rather than just accepting it as precedent to be honest. It's not ok to continue to assert that Dole is a good case to aid in one's understanding of how the modern day court approaches whether or not laws passed pursuant to Congress' commerce power are constitutional uses of the power.

solidsnake wrote:Moreover, OP asked a fairly limited-scope question. One skill you would be advised to develop, 0L, is the art of never offering more info than you were asked; and, second, know when your or someone else's answers are non-responsive.

and lol@at you thinking you are constitutionally literate just because you can (rightfully) bitch that American federalism has died.

Does it bring you joy that Constitutional Law favors progressive instability and not the Constitution? Yes, I do think I am constitutionally literate actually. Laugh all you want.

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

still a 0L, but look at South Dakota v. Dole.

Economic activity can be aggregated. Non-economic activity cannot be aggregated, but it can be regulated. The court looks at (amongst other thing)whether the link between the activity and the burden on interstate commerce is too attenuated, whether congress could have reasonably found that the activity does affect interstate commerce, whether there is a jurisdictional hook in the statute, and whether the regulation implicates some area that is the traditional domain of the states.

One Caveat: Raich seems to propose the idea that purely intrastate, personal, non-economic activities can be aggregated if the nature of the activity is normally economic.

Congress can also regulate non-economic activity if the regulation is (reasonably tied to) part of a broader economic regulatory scheme.To the 0L, Dole is about the spending power.

no. there is a categorical NO to regulation of an activity that is not economic in nature. demand refund. what school do you go to?

There is no categorical no to regulation of activity that is not economic in nature. That is the point of the whole substantial effects test; If an activity which is not by it's nature economic burdens interstate commerce, Congress may be able regulate it despite the fact that the activity itself is non-economic. What school do you go to?

Last edited by Aqualibrium on Wed May 05, 2010 10:37 pm, edited 1 time in total.

bernie shmegma wrote:Does it bring you joy that Constitutional Law favors progressive instability and not the Constitution? Yes, I do think I am constitutionally literate actually. Laugh all you want.

I don't think you are, because you cite the cases that do not advance an understanding of an interpretation of a clause of the Constitution which the OP originally asked for. Regardless of whether you think that interpretation is right or wrong, your inability to identify and discern which cases are relevant shows you are Constitutionally illiterate.

Last edited by Llewellyn on Wed May 05, 2010 10:37 pm, edited 1 time in total.